Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

17 January 2014

Elephant-in-the-Room Internet Link Sausages

Policy arguments seldom take place in a vacuum, nor are they truly bivalued "My way or the Apocalypse." There's always an alternative — of sorts — and pretending that whatever fills the vacuum hypothetically created by one's disfavored straw-man may not be an improvement.

Flowers on the grave or in the attic? The truly interesting thing — to an intellectual property nerd — is how this all relates to the concepts of "copyright," of "authorship," of "designation of origin justifying trademark status"... and of "consumer deception." I'm sure there's a manuscript up in the attic with some answers...

President Obama proposes limits on the NSA's phone data collection that will be utterly insufficient for two reasons (that neither he nor any other political figure can control). The first is that no intelligence apparatus in history has been able to resist the temptation to use capabilities, regardless of purported restrictions on their use; if the capability exists to sweep the data in, it will happen, even under democracies otherwise committed to respecting civil rights. The second is that private actors are not bound by government restrictions in quite the same (arguably, in any) way, meaning that it's all going to be done with even less oversight. It all sounds like Kafka runs the intelligence community now, doesn't it?

Earlier this week, the US Court of Appeals for the District of Columbia ruled that the FCC's current "network neutrality" rules for the internet were not properly adopted and therefore void(PDF). One must acknowledge that under the cramped precedent and interpretation of the Administrative Procedures Act, this is a defensible result... and in a sense inevitable, given gridlock, lobbying, etc. in Congress combined with the feckless FCC appointments of Presidents Clinton and Bush II. On substance, it's a bad decision — content agnosticism is essential to the function of virtually any complete communications system — but the Court did not rule against net neutrality itself; it was the method by which the particular regulations were adopted that failed.

That said, the real problem with the ruling is that it is necessarily predicated on a decade-old factual record (and that's the FCC's and Congress's fault, not the court's). The 'net's ownership and functional structure have changed radically since the evidence supporting the particular rules adopted was gathered. To list only one obvious example, in 2002 (when one of the major studies was done), there wasn't an oligopolist broadband provider that also owned a Big Four television network; now there is. Many of the objections are focused too much on player identities rather than class-of-data conflicts. Comca$t has even less incentive than most broadband providers to play fair with non-cable-TV-like entertainment purveyors like Netflix, Hulu... and Amazon and Apple, which are both ramping up provision of downloadable and streaming multimedia. In short, that means that this ruling could well inhibit e-book distribution, too. This is a more-subtle, and more-dangerous, issue than one might expect... because all it would take to cripple access would be to treat Overdrive (the dominant e-book and streaming-media provider for public libraries in the US), which is too economically small to seem significant, as a disfavored provider "just like" Netflix. Too, this leaves the potential of effectively viewpoint-discriminatory restrictions justified by "we just couldn't reach an equitable agreement for premium access speeds!" all too available, particularly in those parts of the country — rural areas — with the most-restricted menu of potential broadband providers... where the "alternative" providers tend to be much more willing to censor unpopular opinions (just watch a local news broadcast in "farm country" some time). And small publisher/author cooperatives — particularly those espousing nonmajority (or disfavored-by-entrenched-minority) views — are at least equally vulnerable, whether in mutlimedia or "merely" textual form.

Of course, some commentators will claim that this is a great thing because it means that the government "won't be regulating" the 'net. Others will, for partisan and ideological reasons, claim that this is actually a win for the government or at most a minor speedbump on the way to suppression of innovation and private enterprise (the source of that particular observation is particularly unsurprising, either as to publisher or as to authors). For all the problems with government regulation of communications (see previous link sausage), one must remember that private quasiregulation is apt to be worse... and is certainly less accountable, however difficult it may be to make the government accountable. It's only a couple of centuries since the Salem witch trials... which were not driven by governmental actors. And any charming trust in the willingness of private enterprise to provide a fair and open forum without a regulatory gun held to its head has never met Faux News, or the MPAA rating system. In short: Frying pan, meet fire.

The Fine Print

Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.

I approve of no advertising appearing on or through syndication for anything other than the syndication itself; any such advertising violates the limited reuse license implied by voluntarily including syndication code on this blawg, and I do not approve aggregators and syndicators whose page design reflects only an intent to use the reference(s) to this blawg without actually providing the content from this blawg.

Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.

I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.

Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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